1994 PLP 420 (CLC)

This results from the delegated power having ceased to be effective upon the expiry of Ordinance II of 1988 and the corresponding repeal of the relevant provision of law whereunder Notification No.610(i)/88 of the Central Board of Revenue was issued. Accordingly the levies and the demands raised pursuant to the contravening notifications on the strength of Notification No.610(i)/88 dated 30‑6‑1988 of detailed in each of the petitions would be invalid and of no legal effect. Resultantly, the relevant notifications no longer holding the field and there being no independent delegation and no notification on the strength of a subsisting delegation under Section 25‑B of the Customs Act, which having been re‑enacted under the Finance Act of 1988, could encompass a fresh delegation by the Central Board of Revenue but no corresponding resort thereto having been made the cases, covered by these Constitutional Petition, upon the foregoing findings, shall have to go back to the Customs Authorities and assessments shall have to make in terms of ~ section 25 of the Customs Act, whereunder till the promulgation of section 25‑B ibid, such matters were being dealt with. The Central Board of Revenue, however, would be free to issue fresh notifications in terms of Section 25‑B of the Customs .Act, 1969, is re‑enacted under the Finance Act of 1988. To the foregoing extent but without any orders as to costs the above noted Constitutional Petitions are allowed subject, as we have said, to reasons which are to follow." The reasons for such disposal and the foregoing conclusions disappear herein below:

2. The National Assembly of Pakistan as well as the Provincial Assemblies were dissolved on 29‑5‑1988. National Assembly of Pakistan thus not being in session and provisions to give effect to the financial proposals of the Federal Government for the year 1988‑89 having to be made by the then President of Pakistan on 26‑6‑1988 promulgated Finance Ordinance II of 1988 (PLD 1989 Central Statutes 28) for proposals beginning 1‑7‑1988. One of the many amendments brought about by such Ordinance was insertion of section 25‑B in the Customs Act, 1969, whereunder, for the purpose of levying customs duties under the Act, the Central Board of Revenue was empowered, either itself or through an authorized officer, to fix valuation of goods specified in the First and Second Schedules to the Customs Act. Here an objection of ' Mr. Sirajul Haq, learned counsel for some of the petitioners, may conveniently be noted. Learned counsel has pointed out that whereas for the purposes of the newly inserted Section 25‑B the Board as well as an officer authorized by the Board may fix the value of the goods the power to determine the rates is that of the Board alone in view of the concluding part of the section namely, "at such rates as it may deem fit and subject to such conditions or limitations as it may impose". It does appear, on a plain reading of the section, that the word "it" used twice in the quoted phrase refers to an inanimate person or body such as the board and may not signify a living being viz. an individual delegatee. However, in view of the findings recorded above it appears unnecessary to opine upon the effect of the referred phraseology. At any event, in the exercise of such powers the said Board, per Notification No. SRO 610(1)/88 dated 30‑6‑1988 delegated the relevant authority to the Controller of Customs Valuation. This was and remains the only delegation of authority of the Central Board of Revenue and a number of consequential notifications have been issued by the delegatee from timb to time and continue to be so issued to date. The essential argument in‑ these petitions has been that SRO 610(i)/88 dated 30‑6‑1988 ceased to remain in force on 26‑10‑1988 when Section 25‑B (supra), its sanctioning provision, inserted by Finance Ordinance II of 1988 disappeared from the Statute book upon the deemed repeal of such Ordinance on the expiry of four months' time from the date of its issuance in terms of Article 89 of the Constitution, the Ordinance not having been placed before the National Assembly for being enacted as an Act of the Federal Legislature in accordance with Article 89(2)(a)(i) of the Constitution of Pakistan. A follow‑up argument is that the notifications issued beyond the operative period of the Ordinance under reference, pursuant to delegated authority, are equally without cover of law, the delegation having terminated with the deemed repeal of Ordinance II of 1988. The resultant assessments/proposed assessments by the Customs Authorities m terms of the questioned notifications are argued to be bad and of no legal effect. Another ancillary argument of Mr. Sharaf Faridi, which may straightway be disposed of, is that the delegating notification dated 30‑6‑1988 was still‑born because the financial proposals of the Federal Government were to become effective only from the advent of the ensuing financial year viz. July 1, 1988. The argument is untenable since the notification under reference was not in implementation of any financial proposal but could only be a procedural step in that direction. The Ordinance itself became operative "at once" on 26‑6‑1988 and could therefore sustain a delegation by the Board. No taxing notification has been shown to be issued before July 1,1988.

3. Reverting to the legislative and Constitutional background of these petitions, on 26‑10‑1988, while the National Assembly still stood dissolved and thus not in session the President of Pakistan re‑enacted, almost verbatim, Ordinance II of 1988, terming it as the Finance (Revised) Ordinance XXII of 1988 (PLD 1989 Central Statutes 193). This Ordinance is claimed to be void and of no legal effect as the President, it has been contended, had no authority to re‑enact the same Ordinance upon its expiry, as constitutionally mandated. This can wait for later discussion. Next, on elections being held in the Country and the National Assembly having re‑emerged on the scene that Assembly promulgated Finance Act VI of 198$, which on receiving the Presidential assent, became law on 26‑12‑1988 (PLD 1989 Central Statutes 175). Per Section 8 of such Act, the Finance (Revised) Ordinance, XXII of 1988, was repealed. In reality, it is from this date that the legal and Constitutional difficulties, in effect, arise. Just as was the case with its two precursor Ordinances the Finance Act of 1988' also independently inserted Section 25‑B the Customs Act, 1969. None has questioned nor could possibly question the validity of the insertion of Section 25‑B in the Customs Act through Finance Act VI of 1988 and, accordingly, as from 26‑12‑1988 Section 25‑B ibid. is validly and lawfully on the Statute book. However, there has not been any independent delegation of the powers of the Board of Revenue under the section inserted thus and each one of the notifications which have been issued by the Controller of Customs Valuation draws authority not from any delegation of the Board made after 26‑12‑1988 but instead falls back to the one and only delegation comprised in SRO. 610(1)/88 dated 30‑6‑1988. If only care and caution had been exercised by the Board at this point of time there could possibly have been little or no controversy. As it transpires, this Court has now been called upon to test the vires of the notifications issued in exercise of the aforesaid delegated powers.

4. We may, in chronological order, take up first the challenge of the petitioners to the vires of Finance Ordinance, II of 1998_ It has been urged that the subject‑matter of the Ordinance being a Money bill, that could not be legislated upon by the, President under his Ordinance‑making powers. Reliance is placed on the under‑noted passage occurring in the opinion of the Supreme Court in "Reference No.1 of 1988 made by the President of Pakistan" reported as PLD 1988 SC 75 (88‑89): . "The submission of the learned Attorney‑General that within the framework of the Constitution it is possible for the President and the Governors to authorize the expenditure after 31‑10‑1988 by promulgating appropriate Ordinance is untenable. The Constitution expressly provides for a situation where National or Provincial Assembly stands dissolved, namely Articles 86 and

126. According to these provisions, the Federal and the Provincial Governments are authorized to incur expenditure from the Consolidated Funds for a period not exceeding four months in a financial year. Therefore, in view of the aforesaid express prohibition neither the Federal nor the Provincial Legislature can achieve through the Ordinance what is otherwise prohibited by the express terms of the Constitution."

5. The argument is fallacious and must be rejected. The observation of the Supreme Court has been made in the context of incurring expenditure by the Federal Government from the Consolidated Fund in line with Articles 86 and 126 of the Constitution of Pakistan. Plainly, such was not the field which came to be ‑covered by Finance Ordinance, II of 1988. The Ordinance clearly covered a matter falling within the scope of a money bill, as described in Article 73 of the Constitution and the President of Pakistan was fully competent to legislate upon the subject if the Assembly was not in session within the ambit of Article 89(2)(a)(i). An argument was raised also that the expression "except when the National Assembly is in session" in Article 89(1) does not cover a situation where the Assembly is not in existence and stands dissolved and, therefore, an Ordinance issued otherwise in accordance with Article 99 of the Constitution in such circumstances is not good law. Article 89 in the Constitution is a comprehensive provision detailing all perimeters of Ordinance‑making powers at the level of the President. It is aromatic that a constitution is not a transitory or fleeting legislation and caters to the governance of the State at all times. A Constitutional document, it is settled law, is to be very broadly construed so as to cover all exigencies. A narrow construction has no room in the context of a Constitutional dispensation. The expression "except when the National Assembly is in session" in Article g9(1), therefore, was designed to cover and covers all situations where the National Assembly is not in session for any reason whatsoever and that would include a situation where the Assembly stands dissolved in accordance with the relevant Constitutional provisions. If authority is needed on the subject tech as pointed out by Mr. Naimur Rehman, Standing Counsel, (representing also the Attorney‑General in CPs. Nos. D‑1755/91, 1763/91, 22/91, 23/91, 60/92, etc) is readily provided by President's Reference No.l of 1988, PLD 1989 SC 75, where this express question was examined by Shafiur Rehman, J., in his separate opinion at pages 107‑109 of the report and the Honourable Judge has found that a dissolved Assembly could be as much out of session as a prorogued Assembly for the purpose of attracting Ordinance‑making powers. The opinion does not seem absolutely contrary to the findings of the other learned Judges, who declined invocation of Article 89 because of express alternatives in the constitution itself. For our limited purpose of interpreting the quoted portion in Article 89 the dictum of Shafi‑ur Rehman, J., can be followed. See also Gevernment of Punjab v. Ziaullah Khan, 1992 SCMR 601(612). It is, therefore, held that in the then dissolved state of the National Assembly such Assembly was not "in session" and Finance Ordinance, II of 1988, embracing the subject. in Article 89(2)(a)(i) was validly enacted.

6. This throws up the next two legislative stages relevant to this controversy. On 26‑10‑1988 when the National Assembly was not in session, in similar circumstances as detailed above, the President of Pakistan re‑enacted, virtually verbatim, Finance Ordinance, II of 1988, in the shape of Finance (Revised) Ordinance, XXII of 1988. This according to Mr. Naimur‑ur Rehman, learned Standing Counsel, could be done in view of the rule spelled out by ‑the then High Court of West Pakistan in Tirathmal v. The State, 1959 Karachi 594, a Full Bench Judgment. The finding in that case, elaborating Maulvi Tamizuddin Ahmad v. The Province of East Bengal, PLD 1949 Dacca 1 and dissenting from Ikhlas Ahmad v. Noorun Nabi Ahmad Qureshi, PLD 1958 Kar. 383, seems to be that while the Ordinance‑making power cannot be exercised so as to extend the life of an expired Ordinance, repealed on efflux of time, the same Ordinance could be re‑enacted. The reason for distinction in the two situations was opined to be the circumstance that a temporary expired legislation such as an Ordinance is deemed never to have existed except for transactions past and closed. An extension of an expired Ordinance would keep it alive for all purposes. A re‑enactment would not. The first was found impermissible: the second not so. On the other hand, a recent Full Bench of this Court in Shariat Petitions No. 1‑7‑1988 and 14‑18/1988 etc. (D.0.20‑2‑1991.) has found that extension of an expired Ordinance as well as reenactment thereof are equally bad. This last being a Full Bench enunciation of this Court itself a Division Bench is bound to follow the same, unless a larger Bench or the Supreme Court has expressed otherwise, which is not the position, here: It must, therefore, be found that the Finance (Revised) Ordinance, XXII of 1988, could not be legislated upon and is bad law. If it exists on the Statute Book, it does so only in name and can be disregarded. Arguments of Mr. Sharaf Faridi and other learned counsel to this effect are thus not without force. It may, however, at once be added here that even if the Finance (Revised) Ordinance, XXII of 1988, had validly been enacted such in view of the ratio in Tirathmal's case itself, PLD 1959 Kar. 594, could not revive Finance Ordinance II of 1988 or anything done there under and only a small saving of transactions past and closed would have enured. To put the matter differently, a notification issued, under the Ordinance such as that of June 30, 1988 still would not be saved. Nothing, therefore, turns on vires of the Ordinance.

7. If the Finance (Revised) Ordinance, 1988, is eliminated then between 26‑10‑1988, when Finance Ordinance, II of 1988, stood repealed in terms of Article. 89 of the Constitution of Pakistan and 26‑12‑1988, when Finance Act, VI of 988, was enacted Section $5‑B in the Customs Act, 1969, did not for any legal purpose subsist. Notification of delegation of authority issued by the Central Board of Revenue in the shape of SRO 610(1)/88 dated 30‑6‑1988 resultantly came to an end on 26‑10‑1988 and any follow‑up notifications issued thereunder, in exercise of the delegated authority by the Controller of Customs Valuation were not backed up by any operative delegation.

8. Here it may be pointed out that an Ordinance which is not enacted as an Act of the Federal Legislature pursuant to Article 89(3) of the Constitution stands not merely expired but is deemed by the Constitution to have stood repealed upon efflux. A constitution, as contended by Mr. Abdul Hafeez Lakho, is to be interpreted in line with its own rules of interpretation and for that purpose the provisions in general statute designed to facilitate interpretation cannot be resorted to: Ziaullah Khan v. Govt of Punjab, PLD 1989 Lah. 554, Govt. of Punjab v. Ziaullah Khan, 1992 SCMR‑

602. For this reason the Constitution of Pakistan has a distinct chapter of its own namely, Chapter 5 in Part XII therefore, covering the field of interpretation. Such chapter for the purpose of interpreting the Constitution is the Constitution's own equivalent of the General Clauses Act. Relevantly, it is Article 264 (b)(c) and (e) reproduced hereunder which is attracted: "

264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,‑‑‑ (a) .................. (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) ..................... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."

9. Now Article 264 of the Constitution is in effect a reproduction of section 6 of the General Clauses Act, 1897. By dint of Article 264(c), (e) whatever rights have been acquired, obligations have accrued or liabilities have been incurred under Finance Ordinance, II of 1988, have been saved. Pending proceedings already initiated within the time‑frame of the Ordinance fall in the same category. Thus, all past and closed transactions and pending actions in accordance with Article 264(b)(c) and (e) would be covered and are saved.

10. Still Section 6‑A of the General Clauses Act specifically operates to save to the amendments brought out by a mandatory legislation after its repeal similar provision does not exist in the Constitution. Implication is that the effect of Section 6‑A ibid is denied to a repeal achieved by the Constitution itself. Consequently, repeal which comes about on the interaction of Constitutional provision would not be endowed with any savings of the amendments since such are affected by a law which stands repealed by force of the Constitution. An Ordinance is one such law. Similar conclusions were drawn in Ziaullah Khan v. Govt. of Punjab, 1989 Lah. 554 and on appeal in Govt. of Punjab v. Ziaullah Khan, 1992 SCMR

602. Insertion of section 25‑B, resultantly, through Finance Ordinance, II of 1988, being an amendment in the Customs Act, 1969, is not saved beyond the tenure of the Ordinance and we must so find.

11. Another aspect of the matter pertains to the question whether a notification issued under an Ordinance which stands repealed by operation of Article 89 of the Constitution is or is not saved. The General Clauses Act, 1897 in Section 24 thereof with respect to repealed legislations saves notifications and orders issued there under. Much like Section 6‑A of the General Clauses Act, section 24 of such Act has also no equivalent in Chapter 5 of Part XII of the Constitution. The inference, therefore, is that such notifications under a repealed Ordinance were also not calculated to be saved by the Constitution and should come to an end with the repeal itself. A similar situation arose in the case of Itteffaq Foundation v. Federation of Pakistan, PLD 1990 Lah. 121, and like conclusions were reached.

12. As a result and having examined notifications dated 2‑11‑1988; 28‑2‑1989, 7‑9‑1989, 4‑1y‑1990, 16‑3‑1991, 14‑5‑1991, 27‑7‑1991, 27‑8‑1991, 29‑10‑1991, 28‑1‑1992, 27‑4‑1992 and 27‑7‑1992, all issued by the Controller of Customs Valuation, questioned in these petitions it is manifest that each of these notifications is based on S.R.O. 610(1)/88 dated 30‑6‑1988, which could not survive Finance Ordinance, II of 1988, irrespective of re‑enactment of such Ordinance. The parent notification dated 30‑6‑1988 having thus ceased to remain effective on 26-10‑1988 and thereafter, off‑shoots thereof, beyond the time‑frame, were never contemplated by law and shall also give way.

13. Indeed, as has been hinted above, the Central Board of Revenue could have issued a fresh delegation upon the re‑enactment of Section 25‑B of the Customs Act, 1969 through Finance Act, VI of 1988 but that the Board never did. The impugned notifications quoted above, therefore, are of no legal effect. Even so, the Board would be free either to issue a fresh notification(s) of its own or to affect fresh delegation, if it so deems fit, provided always that kept in full view. For the present, these petitions are allowed purely on legal grounds. The matters would stand remanded for re‑examination in accordance with Section 25 of the Customs Act, 1969, which alone would be attracted if Section 25‑B ibid. is not applicable: Phasco Hardware Co. v. Govt. of Pakistan, PLD 1989 Kar. 621; S. Abdullah & Co. v. Collector of Customs, PLD 1992 Kam.‑ 258. .

14. Such are the reasons for the short order and conclusions which as reproduced above, were recorded on 18‑2‑1993. . AA./A‑1405/x. Order accordingly,